Canada: Canada Modernizes Copyright Legislation

Last Updated: November 20 2012
Article by Martin P.J. Kratz, Stephen Burns and J. Sébastien A. Gittens

Copyright reform in Canada has, after a decade of effort, finally moved towards implementation. On November 7, 2012, pursuant to an Order in Council, many provisions of the Copyright Modernization Act, SC 2012, c 20, came into force. Several other important provisions under the law, including the new Notice-and-Notice rules and provisions aimed at bringing Canada under the umbrella of two World Intellectual Property Organization (WIPO) treaties, will come into force at a later date.

The purpose of the Act is to modernize existing copyright legislation to account for the environment created due to the Internet and to align with the international standards contained in two WIPO treaties. The Act also aims to enhance the ability of copyright owners in the protection of content, especially in the digital context, while seeking to balance the interests of society and users and their right to fair use of legitimately acquired copyrighted material. Some important changes in the Act are discussed below.

Internet Service Providers

The Act clarifies that Internet Service Providers (ISPs) and search engines are exempt from liability under the Act when acting only as intermediaries in the communication of copyrighted works. An ISPs provision of Internet access or allowing users to download material that the user has personal control of will not amount to infringement as long as the ISP remains a conduit in that process. However, ISPs that knowingly facilitate copyright infringement may face criminal or civil penalties.

The Notice-and-Notice language in the Act, by contrast with the Notice-and-Take-Down regime in the US, provides for specific duties for Canadian ISPs when faced with allegations of hosting infringing content. This regime allows a copyright holder to inform an ISP that an ISP user may be infringing copyright. The ISP, in turn, must forward that notice to the user. Once the user has received notice pursuant to this system, their personal information may be released with a court order.

Updated Rights for Creators

The Act will bring Canadian copyright legislation in line with two WIPO Internet treaties, including giving all copyright owners a making available right. This right grants copyright holders certain control in how copyrighted material is released online. This provision is specifically aimed at the unauthorized sharing of works over peer-to-peer networks. Copyright owners can also look forward to distribution rights, which will allow the control of the first sale of every copy of their work.

The Act contains bolstered language regarding digital locks. Digital locks may be used by copyright holders to prevent unauthorized access or copying. The most controversial part of the legislation provides that, subject to very limited exceptions, it is illegal to circumvent or bypass digital locks used to prevent unauthorized access or copying of a work. A user's exercise of the fair dealing right is not an exception under this regime. It is also now illegal to manufacture, sell or distribute devices or software that is designed to break digital locks or offer services to do so.

Performers will now have moral rights in their performances, a right previously held only by authors. The term of protection under the Act has been extended for sound recordings for performers to 50 years following the publication of the performance, whereas under old legislation, the 50-year period began when a recording was made, rather than released.

Expanded User Rights

Reflecting that the copyright system seeks to balance between divergent policy needs of copyright owners and society and users, the Act provides clarity to legitimize certain everyday activities undertaken by consumers in a digital-age. Private non-commercial activities such as recording television to watch privately at an individual's leisure; copying legitimately owned content, such as songs, to a personal music player or privately controlled computer storage; and backup copying and accessing of legally acquired software are, subject to some limitations, exempt from infringement and become user's rights.

The fair dealing exceptions are the most important of the user's rights and the purposes for which fair dealing may be conducted has been expanded to include satire, parody and education as fair uses of copyrighted materials along with research, private study and criticism.

In addition, the Act permits the use of legitimately acquired copyrighted material for users to create their own content. User generated mash-ups of clips of other works will constitute new works as long they are not for commercial purposes and do not prejudice the original copyright owner's economic interests or moral rights.

Statutory Damages and Remedies

The Act changes the current statutory damages regime by introducing a distinction between statutory damages for private-use infringement and infringement for commercial purposes. Previously courts could award statutory damages of $500 to $20,000 per infringement, with no distinction made depending on the purpose of the infringement. The new Act significantly reduces possible statutory damages for individuals who infringe the Act for personal, non-commercial purposes. In such a case, the court may award between $100 and $5,000 in total damages. Infringement for commercial use carries the same range of fines ($500-$20,000 per infringement) as under the old legislation.


The Act entails important changes to the manner in which copyright law will be enforced in Canada. During the summer of 2012 the Supreme Court released five copyright decisions further defining the balance between the rights of copyright owners and users. With the coming into force of provisions of the Copyright Modernization Act, Parliament has added its voice and priorities to that effort to find the right balance for Canada. With many new provisions, all businesses should review their Internet-related activities in the context of the new Act and adjust practices into to find the best fit among these new provisions. Businesses should also continue to monitor the decisions of the Courts as the new provisions become further illuminated in the context of the likely litigation of many of the new rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Martin P.J. Kratz
Stephen Burns
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Smart & Biggar/Fetherstonhaugh
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Smart & Biggar/Fetherstonhaugh
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions